Unver and Secretary, Department of Social Services (Social services second review)

[2023] AATA 1716

Unver and Secretary, Department of Social Services (Social services second review) [2023] AATA 1716 (20 June 2023)

ReviewNumber:       2022/9314; 2022/10693

Division:GENERAL DIVISION

File Numbers:         2022/9314; 2022/10693

Re:Guler Unver; Ali Unver

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:20 June 2023

Place:Melbourne

The decision under review is affirmed.

......................................[SGD]..................................

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – age pension – whether Applicants are members of a couple for the purpose of calculating their rate of age pension – whether Applicants are members of an illness separated couple – whether there is a special reason not to treat Applicants as members of a couple – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth)

SECONDARY MATERIALS

Guides to Social Policy Law: Social Security Guide, Department of Social Services, version 1.307 released 8 May 2023

REASONS FOR DECISION

Dr L Bygrave, Member

20 June 2023

INTRODUCTION

1. The Applicants, Mr Ali Unver and Mrs Guler Unver, are married and aged 84 years. They have been in receipt of age pension at the following rates: partnered rate until 23 May 2017, single rate from 24 May 2017 to 25 October 2018, and partnered rate from 26 October 2018.

2. Mr Unver departed Australia on 17 July 2019 and has since resided in Turkey. Mr Hakan Unver, who is the son and representative of Mr Unver and Mrs Unver, contacted Services Australia[1] on 12 November 2019 and 15 March 2022 to advise that Mr Unver was living in Turkey permanently ‘due to ill health’ and request that Mr Unver and Mrs Unver be assessed as ‘separated due to illness’.[2]

   [1] On 26 May 2019, the Prime Minister announced the establishment of Services Australia and, on 1 February 2020, it became an executive agency in the Social Services portfolio.

   [2] Exhibit T-T13, 97.

3. Services Australia, both initially and on review, decided to continue to pay Mr Unver and Mrs Unver age pension at the partnered rate because their ‘circumstances do not meet the definition of separated due to illness’.[3]

   [3] Exhibits T-T7, 29 and T-T8, 35.

4. Mr Unver and Mrs Unver made separate applications for review to the Social Services and Child Support Division (AAT1) of the Administrative Appeals Tribunal (the Tribunal) and, on 13 October 2022, the AAT1 decided to affirm the decisions of Services Australia.

5. On 9 November 2022 and 10 November 2022, Mr Unver and Mrs Unver separately applied for review of the AAT1 decision to the General Division of the Tribunal.

6. The applications were heard jointly in Melbourne by videoconference on 19 April 2023. Mr Hakan Unver represented Mr Unver and Mrs Unver at the hearing and gave oral evidence by telephone. Mr Unver did not attend the hearing, but Mrs Unver attended the hearing and gave oral evidence by telephone assisted by an interpreter of the Turkish language.

7. At the request of Mr Hakan Unver, the Tribunal made directions at the hearing that the Respondent file documents from Mr Hakan Unver’s Services Australia file and these were lodged on 27 April 2023. The Tribunal also directed Mr Hakan Unver to file any supporting evidence by 17 May 2023, but he did not do so.

   RELEVANT LEGISLATION

8. Section 55 of the Social Security Act 1991 (the Act) states that the rate of age pension paid to a person is worked out using Pension Rate Calculator A set out at section 1064. The partnered rate of age pension is less than the single rate because, as stipulated in section 1064-A2 of the Act:

   Where 2 people are members of a couple, they will be treated as pooling their resources (income and assets) and sharing them on a 50/50 basis… They will also be treated as sharing expenses (e.g. for rent) on a 50/50 basis…

9. Section 4 of the Act defines ‘family relationships’ for couples: subsection 4(11) provides that for the purposes of the Act, a person is partnered if they are a member of a couple. Subsection 4(2) of the Act states that a person is a member of a couple if they are legally married or in a relationship with another person and they are not living separately or apart from each other on a permanent or indefinite basis.

10. Subsection 4(3) of the Act lists the criteria for forming an opinion about a relationship for the purpose of subsection 4(2) and states that all the circumstances of the relationship are to be considered, in particular:

    (a)  the financial aspects of the relationship, including:

    (i)  any joint ownership of real estate or other major assets and any joint liabilities; and

    (ii)  any significant pooling of financial resources especially in relation to major financial commitments; and 

    (iii)  any legal obligations owed by one person in respect of the other person; and

    (iv)  the basis of any sharing of day-to-day household expenses;

    (b)  the nature of the household, including:

    (i)  any joint responsibility for providing care or support of children; and

    (ii)  the living arrangements of the people; and

    (iii)  the basis on which responsibility for housework is distributed;

    (c)  the social aspects of the relationship, including: 

    (i) whether the people hold themselves out as married to, or in a de facto relationship with, each other; and 

    (ii)  the assessment of friends and regular associates of the people about the nature of their relationship; and 

    (iii)  the basis on which the people make plans for, or engage in, joint social activities;

    (d)  any sexual relationship between the people;

    (e)  the nature of the people's commitment to each other, including:

    (i)  the length of the relationship; and

    (ii)  the nature of any companionship and emotional support that the people provide to each other; and 

    (iii)  whether the people consider that the relationship is likely to continue indefinitely; and

    (iv)  whether the people see their relationship as a marriage-like relationship or a de facto relationship.  

11. Relevant to submissions made by the Applicants, subsection 4(7) of the Act states that where two people are members of a couple, they are members of an ‘illness separated couple’ if:

    (a)  they are unable to live together in their home as a result of the illness or infirmity of either or both of them; and

    (b)  because of that inability to live together, their living expenses are, or are likely to be, greater than they would otherwise be; and

    (c)  that inability is likely to continue indefinitely.

12. Subsection 24(1) of the Act provides that a person may be treated as not being a member of a couple as defined in subsection 4(2) of the Act where:

    (a) a person is legally married to another person; and

    (b) the person is not living separately and apart from the other person on a permanent or indefinite basis; and

    (c) the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple.

    CONSIDERATION

13. The issues for determination by the Tribunal are whether:

    ·Mr Unver and Mrs Unver are members of a couple in accordance with the criteria in subsection 4(3) of the Act;

    ·Mr Unver and Mrs Unver are an ‘illness separated couple’ in accordance with subsection 4(7) of the Act; and

    ·there is any special reason for Mr Unver and Mrs Unver not to be treated as members of a couple from 17 July 2019 in accordance with section 24 of the Act.

    Evidence

14. The following information about Mr Unver and Mrs Unver is in the documentary evidence before the Tribunal, and the oral evidence of Mrs Unver and Mr Hakan Unver at the hearing:

    ·Mr Unver and Mrs Unver have been married since 1963. They came to Australia in 1969 and have children and grandchildren living in Australia.[4]

    [4] Exhibit T-T3, 13.

    ·Mr Unver and Mrs Unver jointly own a house in Australia; this property is owned unencumbered and is the home where Mrs Unver currently resides.

    ·Mr Unver and Mrs Unver have a joint bank account in Australia.[5]

    [5] Exhibit T-T27, 132.

    ·Mr Unver and Mrs Unver hold no other property or assets jointly, or have any joint liabilities, either in Australia or overseas.

    ·Mr Unver separately owns a house in Turkey, which is where he currently lives alone. A carer visits his house several times a week to assist with washing and cleaning.

    ·The age pension payments of both Mr Unver and Mrs Unver are deposited into their joint bank account in Australia.[6] Mr Hakan Unver then transfers Mr Unver’s pension amount into his individual bank account in Turkey.

    [6] Exhibits ST-ST5, 41 and ST-ST6, 43.

    ·Mr Unver is currently receiving age pension at the partnered rate of $743.92 per fortnight (this is calculated on the basis of the length of time he was an Australian resident between the age of 16 years and the age pension age).[7]

    ·Mrs Unver is currently receiving age pension at the partnered rate of $802.00 per fortnight.[8]

    ·Mr Unver departed Australia on 24 May 2017 and informed Services Australia that he and Mrs Unver were separated.[9] Mr Unver returned to Australia on 16 October 2018 and completed a ‘Confirmation of Relationship’ form in which he declared that he reconciled with Mrs Unver on 26 October 2018.[10]

    ·Mr Unver departed Australia on 17 July 2019 and travelled to Turkey with Mrs Unver, but Mrs Unver returned to Australia after about six months.

    ·Mrs Unver told the Tribunal that:

    oshe has been married to Mr Unver for 60 years and she has no intention of either formally separating from or divorcing Mr Unver;

    otheir friends and family know she and Mr Unver are married;

    oshe went to Turkey with Mr Unver in 2019 but he told then her to leave and go back to Australia; and

    oshe only speaks to Mr Unver by telephone if necessary as she is unhappy with his treatment of her.

    [7] Exhibits T-T11, 62 and ST-ST6, 43.

    [8] Exhibit ST-ST5, 41.

    [9] Exhibit ST-ST2, 14.

    [10] Exhibit T-T18, 113 and T-T5, 21.

15. Mr Hakan Unver has made submissions to Services Australia, the AAT1 and this Tribunal that Mr Unver and Mrs Unver should be paid age pension at the single rate as they are an ‘illness separated couple’. He said that Mr Unver lives in Turkey ‘because of the medical treatment he can receive there’ and Australia ‘has waiting periods’.[11]

    [11] Exhibit T-T13, 97.

16. Neither Mr Unver nor Mr Hakan Unver have provided any medical or other documentary evidence that sets out a diagnosis of Mr Unver’s conditions, any treatment received by Mr Unver either in Australia or Turkey, or explains the reason why Mr Unver requires medical treatment in Turkey. In a written statement dated 17 September 2017, Mr Unver only referred to having gall bladder surgery in Turkey in 2008 and being ‘hard of hearing’.[12]

    [12] Exhibit T-T3, 13

17. At the Tribunal hearing, Mrs Unver said she did not know exactly what Mr Unver’s illnesses are because she has never been to the doctor with him, but she thought he was being treated for ‘lungs and stomach problems’. Mr Hakan Unver told the Tribunal that he believes Mr Unver has dementia but he has no evidence of a diagnosis. Mr Hakan Unver said his father is a ‘private person’ who has been ‘sick all his life’. He said Mr Unver has had ‘prostrate issues’ but could not provide any details or say when this occurred. He also said that the carer for Mr Unver in Turkey accompanied him to medical appointments, but he has not been able to obtain any information or documents about these appointments.

    Issue – are Mr Unver and Mrs Unver members of a couple in accordance with the criteria in subsection 4(3) of the Act?

18. Having regard to the evidence before the Tribunal, I make the following findings in relation to the criteria in subsection 4(3) of the Act:

    Financial aspects of the relationship

19. Mr Unver and Mrs Unver jointly own a house in Australia and hold a joint bank account into which both their age pension payments are deposited. While there is no evidence that Mr Unver and Mrs Under share day-to-day household expenses because Mr Unver resides in his house in Turkey and Mrs Unver lives in their home in Australia, I do not accept this prohibits them from pooling their financial resources. I find this factor weighs strongly in favour of Mr Unver and Mrs Unver being members of a couple.

    Nature of the household

20. As Mr Unver is currently residing in Turkey and Mrs Unver is currently living in Australia, I accept that they have separate living arrangements. I find this factor weighs against Mr Unver and Mrs Unver being members of a couple.

    Social aspects of the relationship

21. Mr Unver and Mrs Unver continue to hold themselves out to be a married couple to family and friends despite living in different countries. I find this factor weighs strongly in favour of Mr Unver and Mrs Unver being members of a couple.

    Sexual nature of the relationship

22. There is no sexual relationship because Mr Unver and Mrs Unver live in different countries, and so this factor weighs against them being members of a couple. I place less weight on this factor in view of Mr Unver and Mrs Unver living apart.

    Nature of the people’s commitment to each other

23. Mr Unver and Mrs Unver have been married for 60 years and have no intention to either formally separate or divorce. I find this factor weighs strongly in favour of Mr Unver and Mrs Unver being members of a couple.

    Conclusion

24. On balance of all the evidence, I am satisfied that Mr Unver and Mrs Unver are members of a couple pursuant to subsection 4(2) of the Act.

    Issue – are Mr Unver and Mrs Unver an ‘illness separated couple’ in accordance with subsection 4(7) of the Act?

25. The Social Security Guide (the Guide) provides policy guidance about determining an illness separated couple:

    It is not the intention that medical evidence is required for the majority of assessments. A couple separated due to illness or infirmity will be accepted as illness separated in situations where:

    -    it is apparent that the illness or infirmity of one or both members of a couple prevents them from living together, and/or

    -    there is supporting evidence of illness or infirmity, for example, where the ill or infirm member of the couple

    o   has current care needs that indicate that the couple cannot live together (this could be based on information Services Australia already holds on care needs provided to assess entitlement of a carer to receive [carer allowance] or [carer payment] in respect of the ill or infirm member of the couple)

    o   has had an ACAT [Aged Care Assessment Team] assessment that indicates care is needed on an ongoing basis

    o   permanently lives in an aged care facility that provides low (hostel) or high level (nursing home) residential care

    o   is residing in a psychiatric facility, or

    o   is a patient in a normal hospital ward and has been classified as a nursing home type patient.

    Where illness or infirmity that prevents the couple living together is not apparent and no other supporting evidence is available, the claimant/recipient may be requested to provide supporting evidence from a treating doctor or relevant health professional.

    It is important to note that:

    -    it is not necessary for a care situation … to exist for the illness separated rate to be paid, and

    -    an illness separated couple should not be confused with former members of a couple whose relationship has ceased as a result of ill health.[13]

    [13] Social Security Guide, version 1.307 released 8 May 2023, part 2.2.5.60.

26. While I accept the Guide states that medical evidence is not always required to assess whether a couple is separated by illness, unfortunately in this matter there is no evidence before the Tribunal that shows the circumstances of Mr Unver and Mrs Unver or supports the submissions of Mr Hakan Unver that they are an illness separated couple. In particular, I find there is no objective evidence that shows Mr Unver is ill or infirm, no evidence that Mr Unver and Mrs Unver are unable to live together in their home in Australia as a result of Mr Unver being ill or infirm, and no evidence that the living expenses of Mr Unver and Mrs Unver are greater as a result of an inability to live together. There is also no evidence that either Mr Unver or Mrs Unver are residing in a care facility that means they are separated due to illness or infirmity. Rather, the evidence before the Tribunal shows that Mr Unver can access medical treatment in Australia but, for his own reasons, he has chosen to live and access medical treatment in Turkey.

27. In making this finding, I note that neither Mrs Unver nor Mr Hakan Unver were able to provide any details to the Tribunal about Mr Unver’s current medical conditions and treatment, and could not explain to the Tribunal why Mr Unver required medical treatment in Turkey rather than Australia. In view of Mr Hakan Unver’s oral submissions at the hearing about his father’s ill health, he was provided with a further opportunity to file any supporting evidence (such as a letter from Mr Unver’s carer or any family members in Turkey or any treating medical doctors) by 17 May 2023. However, he filed no corroborating medical or other evidence.

28. Based on the evidence, I am not satisfied that Mr Unver and Mrs Unver are an ‘illness separated couple’ pursuant to subsection 4(7) of the Act.

    Issue – is there any special reason for Mr Unver and Mrs Unver not to be treated as members of a couple from 17 July 2019 in accordance with section 24 of the Act?

29. Subsection 24(1) of the Act sets out the requirements for a person to not be treated as a member of a couple pursuant to subsection 4(2) of the Act.

30. I am satisfied Mr Unver and Mrs Unver are legally married to each other and so the requirement in paragraph 24(1)(a) of the Act is met. Given Mr Unver and Mrs Unver have been married for 60 years and intend to remain married, I can also accept that they are not living separately and apart from each other on a permanent or indefinite basis as required by paragraph 24(1)(b) of the Act.

31. I now turn to considering whether there is a special reason, in this particular case, to not treat Mr Unver and Mrs Unver as members of a couple.

32. The Guide states that section 24 of the Act ‘exists to deal with unfair, inequitable and/or unjust anomalies’ and ‘should only be applied when all other reasonable means of support have been explored and exhausted’.[14] The Guide sets out three questions that need to be considered when assessing the circumstances of the case:

    ·Is there a special reason to be considered in this couple’s circumstances? The Guide notes that a person’s circumstances must be ‘unusual, uncommon, abnormal or exceptional’; noting that ‘financial difficulty is not, of itself, sufficient to constitute “special reason”’.

    ·Is there a lack of being able to pool resources for the couple as a result of the circumstances? The Guide sets out that, in ordinary circumstances, it is expected that members of a couple will pool their resources and share their expenses: there should be consideration as to whether ‘either member of the couple has access to any social security or other support that has not been explored or realised’.

    ·Is there financial difficulty as a result of the couple’s circumstances? The Guide describes ‘financial difficulty’ for this purpose as ‘not being able to provide for accommodation and the basic necessities of life’. In considering a person’s overall financial situation, the Guide states that a person’s income and available funds from assets should be compared to their ‘necessary expenditure’ that could include utilities, rates, rent, groceries, transport and loan repayments.[15]

    [14] Social Security Guide, version 1.307 released 8 May 2023, part 2.2.5.50.

    [15] Social Security Guide, version 1.307 released 8 May 2023, part 2.2.5.50.

33. I find there is no evidence before the Tribunal that shows the circumstances of Mr Unver and Mrs Unver are unusual, uncommon or exceptional.

1. Mr Unver and Mrs Unver jointly own a house unencumbered in Australia, and Mr Unver owns a house in Turkey. They continue to reside in these houses in Australia and Turkey. They have a joint bank account into which both their age pension payments are deposited. As stated in paragraph 19 above, I do not accept that the decision of Mr Unver to reside in his house in Turkey while Mrs Unver lives in their house in Australia, prohibits their ability to pool their financial resources. In making this finding, I note that Mr Unver and Mrs Unver have provided no evidence that they are incurring additional living expenses due to their current arrangement. There is also no evidence before the Tribunal that Mr Unver and Mrs Unver are experiencing financial hardship or are unable to pay for necessary expenses such as utilities, rates and groceries.

2. The only evidence before the Tribunal in relation to the financial circumstances of Mr Unver and Mr Unver was oral evidence at the hearing. Mr Hakan Unver told the Tribunal that Mr Unver does not contribute towards house maintenance costs or pay the rates of the house he jointly owns with Mrs Unver in Australia. Mrs Unver said she has medical expenses but accepted that she has a health care card and support from Medicare.

3. I am satisfied there is no evidence that there is a special reason to not treat Mr Unver and Mrs Unver as members of a couple in accordance with subsection 24(1) of the Act.

   CONCLUSION

4. For the reasons set out above, I am satisfied that Mr Unver and Mrs Unver should continue to be paid age pension at the partnered rate. I note that if the circumstances of Mr Unver and Mrs Unver change, they can seek a fresh determination from Services Australia.

   DECISION

5. The decision under review is affirmed.

I certify that the preceding 38 (thirty -eight) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

..............................[sgd].......................................

Associate

Dated: 20 June 2023

Date(s) of hearing:	19 April 2023
Date final submissions received:	27 April 2023
Advocate for the Applicant:	Mr Hakan Unver
Advocate for the Respondent:	Alina Ali
Solicitors for the Respondent:	Services Australia - Litigation Branch